1. General Provisions
Through the Services, we aim to give you access to our unique audio guestbook system and associated accessories to let guests at your wedding or other special event send wishes with the sound of their voice.
Children under the age of 13 may not access or use the Services, and parents or legal guardians may not agree to these Terms on their behalf.
Children 13 years or older but under 18 years of age may access and use the Site and the Content under the supervision of their parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent any products from or engage in any other transactions with FêteFone.
If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you agree to be fully responsible for his or her use of the Services, including all legal liability he or she may incur.
1.3. Business Use of the Services
If you access or use the Services on behalf of or in connection with a business, you represent that you are authorized to act on behalf of and bind that business, and you acknowledge that you are accepting these Terms on behalf of that business as well as in your individual capacity. In such event, any references to “you” or “your” herein shall also include such business.
1.4. Mobile Charges
Your carrier’s standard charges, data rates and other fees may apply if you access the Services through a mobile or wireless device.
1.5. Modification of the Services or the Terms
We may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. If you have a pending order with us, we will use commercially reasonable efforts to notify you of any material changes to these Terms by posting a notice on the Site and/or sending you an email at the email address you provided to us with your order.
The Services include the Rental of FêteFone’s audio guestbook system and associated accessories (the “Products”). This Section 2 includes certain additional terms and conditions that apply specifically to your rental of any Products, the recordings produced through your use of the Products (the “Recordings”), and the assembly and delivery of the Recordings into an MPEG-2 Audio Layer III file (the “MP3 File”) after you return the Products to us. For the avoidance of doubt, any references to the Rentals or the Services herein shall include the Products, Recordings and MP3 File.
2.1. Rental Not Sale
All orders placed with us are for rentals of the Products, not sales.
Children under the age of 13 may not use the Rentals.
Products may be rented for use by children 13 years or older with proper adult supervision, but only adults 18 years or older may actually place orders to rent the Products.
By clicking to agree to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including but not limited to credit cards) for the purpose of renting the Products, as described in these Terms.
You acknowledge and agree that we may place limits on the rental of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals of Products for any reason, including but not limited to availability concerns.
2.4. Rental Fee
Your rental fee (“Rental Fee”) for the Products you order will be the total of the rental fees for each Product ordered, as specified on the Site.
When you place your order for a Product, you hereby authorize us to charge your payment card for, and you agree to pay, the Rental Fee. We will charge your payment card the amount of the Rental Fee as soon as reasonably practicable after you place your order.
Rental Fees exclude any applicable federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments (“Taxes”), all of which shall be paid by you directly. If we are required to collect or pay any such Taxes, however, you authorize us to charge your payment card for, and you agree to pay, such Taxes when you place your rental order for a Product.
2.5. Change Policy
You may change your rental order by contacting us before your shipping confirmation email is sent. When you request a change, you authorize us to charge your payment card for, and you agree to pay, the amount of any increase in the Rental Fee applicable to your order as a result of the change. If your change results in a decrease to the Rental Fee, you will receive a refund in the amount of that difference issued to the payment card you used for the order. Changes are subject to Product availability, and we reserve the right to cancel and refund your order instead of accommodating the change for any reason.
2.6. Cancellation Policy
You may cancel your rental order by contacting us before your shipping confirmation email is sent. If you cancel before your shipping confirmation email is sent, there is no cancellation fee and you will receive a full refund of the Rental Fee issued to the payment card you used for the order. If you cancel after your shipping confirmation email is sent, you will not receive any refund or credit and shall continue to be responsible for and shall return the Products to us in the manner specified herein.
2.7. Shipping and Delivery
We warrant that we will arrange for the delivery of the Products you ordered to the shipping address you specify when you place your order (the “Shipping Address”) no later than the event date you specify when placing your rental order (your “Event Date”), except in the rare event that a Product you ordered is damaged beyond repair or is otherwise unavailable. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement Product of the same or greater value or cancel your order, in our sole discretion. You acknowledge that Products may appear different in color and style than as displayed on the Site and that the descriptions of the Products on the Site may be inaccurate.
The Products you rent from us will be scheduled to ship in time to arrive at your Shipping Address at least two calendar days before your Event Date. All shipments will be made through our shipping partners, which may change from time to time. We will not charge you for the shipping of Products to or from any Shipping Address within the continental United States, so long as you place your rental order through the Site at least 30 calendar days before your Event Date.
In the event of a shipping delay, we may choose, at our option and at no additional cost to you, to expedite replacement Products (the “Replacement Products”) to your Shipping Address to help ensure that the Products you ordered arrive on or before your Event Date. If neither your Products nor any such Replacement Products arrive at your Shipping Address on or before your Event Date for any reason other than the reasons described in the last paragraph of this Section 2.7, you will receive a full refund of your Rental Fee issued to the payment card you used for your order, provided that you return the Products and any such replacement Products to us in the manner specified in, and otherwise comply with, these Terms.
Our liability resulting from the failure of the Products you ordered to arrive on or before your Event Date shall be limited to the amount of the Rental Fee. The shipping method and partner used will be in our sole discretion, unless you specifically request and agree to pay for, and we agree to use, an alternate shipping method or partner. If you require expedited shipping, an alternate shipping method or shipping to or from a Shipping Address within the United States but outside the continental United States, you hereby authorize us to charge your payment card for, and you agree to pay, the cost of both the outbound and return shipping of the Products you order at the time the Products ship. Products cannot be shipped or used outside the United States.
You acknowledge that a Secure Shipping Address is highly recommended. A “Secure Shipping Address” means a Shipping Address where a responsible individual physically receives the Products from our shipping partner upon delivery. You acknowledge that providing anything other than a Secure Shipping Address or a Shipping Address that contains errors or is incomplete may result in delivery delays and additional delivery fees from our shipping partner, for which we will not be liable. You will be responsible for any such delays and will pay any such additional delivery fees.
2.8. Use and Care of the Products
You bear responsibility for the Products upon delivery to your Shipping Address, including but not limited to any and all liability for Products left unattended if a Shipping Address other than a Secure Shipping Address is used.
You agree to treat the Products with great care, as if they were borrowed from a friend. You are responsible for any loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, carelessness, neglect, damage, destruction, alteration or any other reason, other than normal wear and tear. Normal wear and tear encompasses minor scratches and marks or other similar minor damage, as determined in our sole discretion.
If a Product is lost, destroyed or damaged beyond normal wear and tear, you authorize us to charge your payment card for, and you agree to pay, the cost of repairing or replacing the Product, as determined in our sole discretion, up to $500 per Product (the “Damage Fee”) in addition to any other applicable charges described herein.
You agree to read any setup instructions in their entirety before using any of the Products. You acknowledge and agree that the Products are only to be used indoors and are not to be operated near water or any fluid. You agree not to disconnect any Product’s power supply while the Product is in use and/or while its lights are flashing. You agree to not work with or use the Products during periods of lightning activity and to not touch any wires at the end of any cables or in any outlets or sockets. You agree to not connect the Products to any public or private telephone system and to not transport or use the Products anywhere outside the United States. You acknowledge and agree that the Products cannot be used to make any outgoing calls, including any emergency calls. You acknowledge and agree that our Products are not designed, recommended or authorized to be used in high-risk applications such as safety, life support, surgical implant, nuclear, or aircraft applications, for any use or application in which the failure of a single component could cause substantial harm to persons or catastrophic property loss, or for any military or weaponry use.
We are not responsible, and you agree to indemnify, hold harmless and defend FêteFone and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to attorneys’ fees, resulting directly or indirectly from (i) the use of the Products outdoors or near any water or fluid, (ii) the disconnection of the power supply while a Product is in use and/or while any lights are flashing, (iii) the connection of the Products to any public or private telephone system, (iv) the attempted use of the Products to make outgoing or emergency calls, or (v) any other improper use of the Rentals, including but not limited to those improper uses specified in these Terms.
2.10. Returns and Extensions
We will provide you with a pre-paid, pre-addressed return shipping label (the “Return Shipping Label”) that you can use to return the Products to us using the same packaging in which the Products were shipped to you (the “Return Packaging”).
You agree to return the Products by securely packaging them in the Return Packaging and providing them to the shipping partner specified on the Return Shipping Label by the close of business on the date that is two business days after your Event Date (the “Return Due Date”). If you lose or damage the Return Shipping Label or the Return Packaging, you agree to be responsible for returning the Products to us by the Return Due Date at your own expense and providing us with a tracking number.
You may extend your rental of any Product by contacting us before the Return Due Date. If you (i) do not contact us to extend your order before the Return Due Date, (ii) do not, if we have agreed to extend your rental, provide the Products in the Return Packaging to the shipping provider specified on the Return Shipping Label by the close of business on the date that is five business days after your Event Date, or (iii) never return the Products, you authorize us to charge your payment card for, and you agree to pay, a $50 late fee (the “Late Fee”) in addition to any other applicable charges described herein. The Late Fee is payable for each order of Products that is not returned when due, not for each Product that is the subject of the order that is late.
Your responsibility for the Products ends when you deliver the Products in the Return Packaging to the shipping provider specified on the Return Shipping Label and you obtain a receipt from such shipping provider. If you do not obtain a receipt from such shipping provider, or if you return the Products to us in any way other than by delivering the Products in the Return Packaging to the shipping provider specified on the Return Shipping Label, however, you agree to bear responsibility for the Products until they arrive back at our offices.
If, notwithstanding your obligations in this Section 2.10, you fail to return any of the Products, the Products you retain are provided to you on an “AS IS” basis without warranty of any kind, and we reserve the right to continue to seek recovery of the Products from you.
2.11. Collections and Recovery of Products
If you do not pay any of the amounts you owe to us when due, we may institute collection procedures. You agree to pay any costs of collection, including but not limited to reasonable attorneys’ fees, in addition to any other applicable charges described herein.
If, notwithstanding your obligations in Section 2.10, you fail to return any of the Products, you agree to pay any costs associated with our attempts to recover such Products, including but not limited to reasonable attorneys’ fees, in addition to any other applicable charges described herein.
2.12. Delivery of the Recordings
Within a commercially reasonable time after we receive the Products back at our offices, we will, provided you have otherwise complied with these Terms, (i) process your Recordings through an audio filter to help reduce background noise, (ii) normalize the volume of each Recording, (iii) assemble the Recordings into a single MP3 File, and (iv) send an email to you at the email address provided when you placed your order with either (a) the MP3 File included as an attachment, or (b) a link to the MP3 File. Because we respect your privacy, we do not listen to your Recordings, except as necessary to confirm that your Recordings have been properly assembled into the MP3 File, as determined in our sole discretion.
You acknowledge that the quality of the Recordings is dependent on a variety of conditions outside our control, including but not limited to power outages, background noise levels, the speaking voice and volume of the person making the Recording, and such person’s relative placement of the handset. You acknowledge that processing your Recordings through an audio filter to help reduce background noise and normalizing the volume of each Recording may be insufficient to make a Recording intelligible or of acceptable quality. We provide no warranty of any kind as to the quality or intelligibility of any of the Recordings or of the MP3 File. The MP3 File is provided to you on an “AS IS” basis without warranty of any kind.
If none of your Recordings can be retrieved from the Products for any reason (other than your failure to return the Products to us or as a result of your improper use of the Products) and you have otherwise complied with these Terms, you will receive a full refund of your Rental Fee issued to the payment card you used for your order. Our liability resulting from the loss of, damage to or inability to access the Recordings or the MP3 File shall be limited to the amount of the Rental Fee.
You retain ownership of any intellectual property rights that you hold in the Recordings or the MP3 File, provided that you agree to use the Recordings and the MP3 File for personal use only at no charge. Personal use includes your right to share the Recordings or the MP3 File with friends, family members, colleagues, guests or other similar persons. You agree, however, not to use the Recordings or the MP3 File for any commercial or editorial purpose without our express written permission. You also grant FêteFone a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or in part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such content to the extent necessary to provide the Services and deliver the MP3 File to you, as determined in our sole discretion.
You are responsible for converting or copying the MP3 File to new file types or new media as required by changes in technology. You acknowledge and agree that we are not required to retain your Recordings for any period, or to retain your MP3 File for more than one calendar year, after we email the MP3 File (or a link thereto) to you at the email address you provided to us with your order. If we choose to provide the MP3 File to you via a link, you acknowledge and agree that, although we will not publish the link, the link is not secure and the MP3 File can be accessed by anyone who has the link address. You acknowledge and agree that we shall not be liable in any way for the contents of the MP3 File or its publication or dissemination to unintended parties.
3. The Site and the Content
The Services include the access and use of the Site and the Content. This Section 3 includes certain additional terms and conditions that apply specifically to your access and use of the Site and the Content.
3.1. External Links
The Site and the Content may contain links or references to non-FêteFone websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and we are not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from FêteFone, and we have no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that we endorse, approve of or accept any responsibility for the Third Party Content or its provider, or vice versa.
3.2. Content Provided “AS IS”
The Site and the Content are available to you on an “AS IS” basis and are to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. You acknowledge that Products may appear different in color and style than as displayed on the Site and that the descriptions of the Products on the Site may be inaccurate.
The Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any of the Content as a substitute for consultation with professional advisors.
3.3. Updates to the Content
We may update the Site or the Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to email@example.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
3.4. Use of the Content
No part of the Services, including the Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that we authorize you to view, copy, download, and print the Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the Content.
3.5. Your Content
If you post, upload or make available to FêteFone or the Services, or otherwise submit to or through us as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to FêteFone a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize FêteFone to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
3.6. Your Account
Access to parts of the Services may require the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify FêteFone promptly of any unauthorized use of your account or password.
There may be delays, omissions, or inaccuracies in the Site or the Content. The Services may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
3.8. Job Postings
We may list open employment positions on or through the Site or the Content. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.
4. Additional Terms and Conditions
This Section 4 includes certain additional terms and conditions that apply to your access and use of the Services.
4.1. Acceptable Use
You may not use the Services to: (i) transmit any content, information or other materials that are, or which FêteFone considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, gender identity, national origin, or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a FêteFone representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent’s consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to) reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Products or the Services, any part thereof or access thereto.
4.2. Access and Use Outside the United States
We make no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that we intend to announce or make available any Products or Services to the general public, or in your country.
The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, Content, Products, Recordings, MP3 File, or any part thereof, in any way, in violation of United States or other law or these Terms.
4.3. Ownership of the Services
Except to the extent expressly granted to you in these Terms, the Services, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of FêteFone and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. All product names are trademarks or registered trademarks of their respective owners. All service names are servicemarks or registered servicemarks of their respective owners. FêteFone and its affiliates and licensors reserve all rights in and to the Services not expressly granted in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of FêteFone or such third party that may own such Content.
4.4. Gift Cards
The amount of any Gift Cards, Gift Credits and Gift Certificates (“Gift Cards”) may be redeemed online against the Rental Fee payable at the time your rental order is placed. Gift Cards are not redeemable for cash or additional Gift Cards, except as required by applicable law. The remaining value of your Gift Card will automatically apply to your order online. The total Rental Fee will be deducted from the amount of the Gift Card until the value of the Gift Card reaches zero.
Gift Cards are final sale only and cannot be cancelled or returned once purchased. Additional value cannot be added to Gift Cards. Gift Cards are void if they are resold or transferred for value.
To check the balance of your Gift Card or to request a replacement for a lost Gift Card, contact us at 240.650.3383. There is no fee for a replacement.
4.5. Services License
Provided you otherwise comply with these Terms, we grant to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that we may use your Feedback without restriction or obligation to you or any third party.
4.6. Notice and Take Down Procedures
If you believe any Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting us at firstname.lastname@example.org and providing the following information: (i) identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; (ii) identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; (iii) your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (iv) a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and (v) a signature or the electronic equivalent from the copyright holder or authorized representative.
In an effort to protect the rights of copyright owners, we reserve the right to terminate, in appropriate circumstances, use of the Services by persons who are repeat infringers.
5.1. Termination by You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at email@example.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
5.2. Termination by Us
Any violation of these Terms may result in suspension or termination of your access to the Services and/or removal of Your Content. We may also terminate your account if we determine that your conduct poses a risk or liability to us, or for any other reason as determined by us in our sole discretion.
5.3. Effects of Termination
If either you or we terminate your use of the Services as described above, these Terms (including your license to use the Services) will also terminate, except that Section 2.1, Section 2.2, Section 2.3, Section 2.4, the last two paragraphs of Section 2.7, Section 2.8, Section 2.9, Section 2.10, Section 2.11, Section 3.5, Section 4.1, Section 4.2, Section 4.3, Section 4.6, Section 6, Section 7 and Section 8 shall continue to apply.
6. Disclaimer of Warranties, Limitation of Liability, and Indemnification
6.1. Limited Warranty
The limited warranty set out in the first sentence of Section 2.7 applies only to you and may not be assigned, sold or transferred to any third party. This limited warranty shall not apply to any matters arising from your violation of these Terms. Notwithstanding anything to the contrary herein, no other warranties are granted by us in connection with the Services.
Your sole and exclusive remedy, and our sole and exclusive liability, for a breach by us of the limited warranty set out in in the first sentence of Section 2.7 shall be our use of our commercially reasonable efforts to replace the non-conforming Product(s) in a timely manner or a refund of your Rental Fee, as determined in our sole discretion.
6.2. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTY SET OUT IN THE FIRST SENTENCE OF SECTION 2.7, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, FÊTEFONE DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED; (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE SERVICES WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS.
6.3. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL FÊTEFONE BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF FÊTEFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE (I) TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS AS SET FORTH IN SECTION 5, OR (II) AS SET FORTH IN SECTION 6.1. FÊTEFONE’S LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MATTER OTHER THAN THE USE OF, OR THE INABILITY TO USE, THE SERVICES SHALL BE LIMITED TO THE AMOUNT OF THE RENTAL FEE ACTUALLY PAID BY YOU.
6.4. Force Majeure
We will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond our reasonable control.
By using the Services, you agree to indemnify, hold harmless and defend FêteFone and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to attorneys’ fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services.
7. Dispute Resolution, Arbitration, and Class Action Waiver
This Section 7 includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
IF YOU ARE AN INDIVIDUAL, YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER BY FOLLOWING THE OPT-OUT PROCEDURE DESCRIBED BELOW WITHIN THIRTY (30) DAYS OF THE FIRST OF THE DATE YOU ACCESS THIS SITE OR APP OR THE DATE YOU RECEIVE ANY SERVICES.
7.1. Informal Process First
You agree that in the event of any dispute between you and FêteFone, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
7.2. Arbitration Agreement
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Services, Products, Recordings or MP3 File, or relating in any way to FêteFone’s communications with you, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and us. However, this arbitration agreement does not (a) govern any Claim by us for infringement of our intellectual property or access to the Services (including the Site and the Content) that is unauthorized or exceeds authorization granted in these Terms or (b) bar you or us from making use of applicable small claims court procedures in appropriate cases.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and FêteFone are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of these Terms.
If you wish to begin an arbitration proceeding after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to FêteFone LLC, Attn: Legal, 5721 Bent Branch Road, Bethesda, MD 20816. The arbitration shall be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
There shall be one arbitrator. You may choose to have the arbitration conducted by telephone, based on written submissions, in person in Montgomery County, Maryland, or at another mutually agreed location. The arbitration will be conducted in the English language. Maryland law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration, subject to your obligations under Section 2.9, Section 2.11, and Section 6.5 hereof. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees.
The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of all or any part of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable, except as specified in Section 7.3 below.
7.3. Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unconscionable, unenforceable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
7.4. Opting Out
You may opt out of the arbitration agreement set forth in Section 7.2, the class-action waiver set forth in Section 7.3, or both by sending a letter expressing your desire to opt out to FêteFone LLC, Attn: Legal, 5721 Bent Branch Road, Bethesda, MD 20816. To be effective, we must receive your letter within thirty (30) days of the first date you access this Site or the first date you receive any Services. If you choose to opt out, you must discontinue your use of the Services.
8.1. Governing Law and Venue
These Terms are governed and interpreted pursuant to the laws of the State of Maryland, without regard to any principles of conflicts of law. Any disputes in connection with these Terms that result in court action, in accordance with these Terms, will be resolved exclusively by a state or federal court located in Montgomery County, Maryland, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
8.2. Entire Agreement
These Terms are the entire agreement between you and us relating to the subject matter herein and shall not be modified except by us in accordance with these Terms, or as otherwise agreed in writing by you and us. You acknowledge and agree that, in the event of any conflict between these Terms and any other information provided by us, including through the Site or the Content, these Terms shall govern. You acknowledge and agree that none of our employees, agents or other representatives have any authority to bind FêteFone with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
8.3. Severability and Waiver
Except to the extent otherwise described in Section 7.3 hereof, if any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
8.4. Assignment and Third-Party Benefit
The provisions set forth in this Agreement are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. We may, however, assign these Terms at any time without notice to you.